Order entered. Memorandum and Order. Please see attached — USA v. Jittaphol (Dkt. 79, D. Mass.)

Record facts

U.S. District Court for the District of Massachusetts · No. 1:21-cr-10270-MLW · Doc. 79 · 2022-04-18 · Docket on CourtListener

Full text

Case 1:21-cr-10270-MLW Document 79 Filed 04/18/22 Page 1 of 33

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

UNITED STATES OF AMERICA
Cr. No. 21-cr-10270-MLW

Vv.

ATICHA JITTAPHOL,

Defendant.
MEMORANDUM AND ORDER
WOLF, D.J. April 18, 2022
I. SUMMARY

On September 13, 2021, defendant Aticha Jittaphol was charged
with two counts of making false statements in violation of 18
U.S.C. §1001(a) (2) for falsely certifying in COVID-19 relief loan
applications to the federal government that the massage business
she owned, Mantra Dhevi Spa, was not engaged in any illegal
activity under federal, state, or local law. In fact, as Jittaphol
has since admitted, her massage business was providing commercial
sex acts to customers in violation of state laws relating to
prostitution.

Jittaphol was released on personal recognizance subject to
conditions of release on October 26, 2021. See Dkt. No. 12. Since
her release, Probation has filed four petitions that the court is

addressing,! which allege that Jittaphol has committed numerous

1 On April 14, 2022, Probation filed another petition alleging that
Jittaphol had tested positive again for methamphetamine. As
explained in this Memorandum, the court had by April 14, 2022
decided to revoke Jittaphol's release. It has not considered or
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violations of these conditions, including: testing positive for
prohibited substances three times; failing to report to a substance
abuse treatment program as directed by Probation two times; failing
to participate in long-term inpatient substance abuse treatment as
directed by Probation; failing to fully participate in outpatient
substance abuse treatment two times; and failing to inform
Probation and seek its permission before changing employment. See
Dkt. Nos. 17, 21, 39-1, 58.

The court conducted hearings concerning the then pending
alleged violations on January 20, 2022 and March 8, 2022, but did
not decide them. On March 8, 2022, the court did modify Jittaphol's
conditions of release to include additional requirements. It
informed Jittaphol that it was essential that she comply fully
with the conditions of her release. She promised to do so. However,
two days later, she failed to attend a required outpatient drug
counseling session. About a week later, she failed to attend a
required session of Crystal Methamphetamine Anonymous ("CMA"). In
addition, a sweat patch worn by Jittaphol from March 1 to 8, 2022
tested positive for methamphetamine. Therefore, these alleged
violations were included in another petition.

The court conducted an evidentiary hearing concerning the

violations in all of the pending petitions on April 1, 4, and 8,

relied upon the unadjudicated April 14, 2022 allegation in issuing
this Memorandum and Order.
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2022. Jittaphol and her Probation officer testified. Jittaphol's
testimony was not credible in material respects.

In summary, the court finds that there is probable cause to
believe that Jittaphol committed a state and federal crime while
on release by using and, therefore, possessing methamphetamine
three times. The court also finds by clear and convincing evidence
that Jittaphol committed six other violations of the conditions of
her pretrial release. Because Jittaphol has repeatedly violated
conditions of her release, despite multiple admonitions by both
Probation and the court, the court finds by a preponderance of the
evidence that Jittaphol is unlikely to abide by any condition or
combination of conditions of release. Therefore, pursuant to 18
U.S.C. §3148, the court is revoking Jittaphol's pretrial release.

Jittaphol entered into a Federal Rule of Criminal Procedure
11(c)(1)(C) binding plea agreement which, if accepted, would
require Jittaphol be sentenced to three years probation rather
than any time in custody. The court expressed skepticism concerning
whether it would find such a sentence sufficient. However, at
Jittaphol's Rule 11 hearing, the court accepted her guilty plea
and deferred until sentencing its decision concerning whether to
accept the binding plea agreement. As Jittaphol's release is now
being revoked, and she will serve time in custody before her
sentencing in June 2022 that would be credited against any prison

sentence, it will not be possible for the court to impose a

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sentence that includes no time in custody. Therefore, the court is
now rejecting the binding plea agreement and giving Jittaphol until
May 2, 2022 to inform the court of whether she elects to withdraw
her guilty plea. See Fed. R. Crim. P. 11(c) (5) (A), (B). If she
does not withdraw her guilty plea, her sentence will necessarily
be less favorable than the plea agreement contemplates. See Fed.
R. Crim. P. 11(c) (5) (C).

II. LEGAL STANDARD

Under 18 U.S.C. §3148{(a), "the court shall enter an order of
revocation and detention if, after a hearing," it:

(1) finds that there is—

(A) probable cause to believe that the person has
committed a Federal, State, or local crime while on
release; or

(B) clear and convincing evidence that the person has
violated any other condition of release; and

(2) finds that—

(A) based on the factors set forth in section 3142(g) of
this title, there is no condition or combination of
conditions of release that will assure that the person
will not flee or pose a danger to the safety of any other
person or the community; or

(B) the person is unlikely to abide by any condition or
combination of conditions of release.

18 U.S.C. §3148(b) .?

2 "An affirmative finding on the first prong helps lead to an
affirmative finding on the second prong: once there is probable
cause to believe that the person ‘committed a Federal, State, or
local felony, a rebuttable presumption arises that no condition or

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"(P)robable cause under section 3148(b) (1) (A) requires only
that the facts available to the judicial officer 'warrant a man of
reasonable caution in the belief' that the defendant has committed

a crime while on bail." United States v. Gotti, 794 F.2d 773, 777

(2d Cir. 1986) (quoting Texas v. Brown, 460 U.S. 730, 742 (1983));

see also United States v. Aron, 904 F.2d 221, 227 (Sth Cir. 1990).

The "clear and convincing" standard is "demanding." Spence v.

Superintendent, 219 F.3d 162, 172 (2d Cir. 2000). The Supreme Court

has instructed that the standard is met only when a party can
"place in the ultimate factfinder an abiding conviction that the
truth of its factual contentions are 'highly probable.'" Colorado

v. New Mexico, 467 U.S. 310, 316 (1984). This standard is satisfied

only when "the material [one party] offered instantly tilted the
evidentiary scales in {its favor] when weighed against the evidence

{the other party] offered in opposition." Id. The First Circuit

combination of conditions will assure that the person will not
pose a danger to the safety of any other person or the community.'"
United States v. Alfonso, 284 F. Supp. 2d 193, 202 (D. Mass. 2003)
(quoting 18 U.S.C. §3148(b)). This presumption requires the
defendant to produce "some evidence" to rebut it. United States v.
Jessup, 757 F.2d 378, 384 (ist Cir. 1985), abrogated on other
grounds by United States v. O'Brien, 895 F.2d 810, 814 (lst Cir.
1990). "When a defendant produces such evidence, however, the
presumption does not disappear. The burden of persuasion remains
on the government and the rebutted presumption retains evidentiary
weight." United States v. Dillon, 938 F.2d 1412, 1416 (lst Cir.
1991). The presumption is not material to the court's decision in
this matter, which is based on the finding that Jittaphol is
unlikely to abide by any condition or combination of conditions of
release, rather than risk of flight or danger to the community.

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has described the standard as "more than a preponderance but less

than beyond a reasonable doubt." In re Pratt, 462 F.3d 14, 21 (1st

Cir. 2006); see also United States v. Acevedo-Ramos, 600 F. Supp.

501, 509 (D.P.R. 1984), aff'd, 755 F.2d 203 (lst Cir. 1985).
Under §3148(b)(2), “a district court's finding that a

defendant will not abide by any conditions of release may be

established by a preponderance of the evidence." Aron, 904 F.2d at

224; see also Gotti, 794 F.2d at 778.

III. THE FACTS

The following facts have been proven by a preponderance of
the evidence, which includes testimony by Jittaphol and a Probation
officer, and 36 exhibits.?

On September 13, 2021, Jittaphol was charged by Information
with two counts of making false statements in violation of 18
U.S.C. §1001(a) (2). See Dkt. No. 1. On the same day, the parties
submitted a binding plea agreement pursuant to Federal Rule of
Criminal Procedure 11(c)(1)(C). See Dkt. No. 4. A revised binding
plea agreement was filed on October 22, 2021. See Dkt. No. 7. Under
the plea agreement, the parties agreed to a sentence of no
incarceration, 36 months probation, and restitution in the amount

of $7,066. See id. at Ql.

3 As indicated earlier, the court finds that Jittaphol's testimony
was often not credible. Despite vigorous cross-examination, the
court finds her Probation officer's testimony was reliable in all
material respects.
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At her initial appearance before the Magistrate Judge on
October 26, 2021, Jittaphol was released on personal recognizance
subject to conditions of release. See Order Setting Conditions of
Release (Dkt. No. 12). These conditions required, among other
things, that Jittaphol: not violate a state or federal law; not
use or unlawfully possess a controlled substance unless prescribed
by a medical practitioner; submit to testing for prohibited
substances; and participate in a program of inpatient or outpatient
substance abuse therapy and counseling if directed by the Pretrial
Services Office or her supervising officer. See id. at 2-3.

Three days later, on October 29, 2021, Jittaphol tested
positive for amphetamines and told Probation that she used
methamphetamine daily. See Ex. 1, November 19, 2021 Petition for
No Action (Dkt. No. 17) at 2. Jittaphol admitted this violation at
the April 1, 2022 hearing concerning the alleged violations of her
pretrial release. Therefore, there is probable cause to believe
that Jittaphol committed a state and federal crime by using and,
therefore, possessing methamphetamine. See 21 U.S.C. §844; M.G.L.
ch. 94C, §34. In addition, her admission provides clear and
convincing evidence that Jittaphol violated a condition of her
pretrial release.

On November 19, 2021, Probation filed a petition advising the
court of this violation, but requesting no action because Jittaphol

was “amenable to receiving treatment to stop her illicit substance

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abuse." See Ex. 1, November 19, 2021 Petition for No Action (Dkt.
No. 17) at 2. Probation directed Jittaphol to participate in an
inpatient detox treatment program at SSTAR in Fall River,
Massachusetts. See id. The court followed Probation's
recommendation and did not then act on the alleged violation.
However, in doing so, it wrote that "Probation shall report
promptly if defendant does not properly participate in detox or
otherwise violates the conditions of her release." Id.

On November 22, 2021, Jittaphol failed to report to the SSTAR
program during intake hours as directed by Probation. See Ex. 2,
January 11, 2022 Petition for Hearing (Dkt. No. 21). On April 4,
2022, Jittaphol testified that she failed to report on November
22, 2021 as directed because she could not find someone to take
care of her dog. See Apr. 4, 2022 Tr. at 90:24-91:11.

After Probation rescheduled her admission for November 30,
2021, Jittaphol again failed to report during intake hours and was
denied placement in the SSTAR program. See id. at 91:12-92:2; see

also Ex. 6, March 31, 2022 Probation Release Status Report

("Release Status Report"). Jittaphol testified that she did not
report during intake hours on November 30, 2021 due to heavy
traffic. See Apr. 4, 2022 Tr. at 91:16-92:2.

On April 1, 2022, Jittaphol admitted that she failed to report
twice to SSTAR during intake hours despite being instructed to do

so by Probation. Therefore, there is clear and convincing evidence

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to believe that Jittaphol committed two additional violations of
the conditions of her pretrial release.

On December 1, 2021, Probation arranged for Jittaphol to enter
an inpatient detox treatment program of the Behavioral Health
Network ("BHN"). On December 3, 2021, Probation was notified that
a bed was available for Jittaphol at BHN, and Probation directed
her to report for admission. See Ex. 7, Pretrial Services
Chronological Record Report ("Chron. Record"); Ex. 6, Release
Status Report at 1-2. Once again, Jittaphol failed to report as
instructed. See Ex. 7, Chron. Record at 11 ("Again, [Jittaphol]
has not arrived to a detox bed when that was the directive."); Ex.
6, Release Status Report at 2. This failure to report as directed
on December 3, 2021 is not alleged as a violation of Jittaphol's
conditions of pretrial release in the pending petitions, but is
nevertheless relevant to whether Jittaphol will obey = any
combination of conditions of release in the future.

When another bed became available, Jittaphol reported to BHN
as instructed on December 6, 2021, and was admitted for detox
services. See Ex. 7, Chron. Record at 11-12; see also Ex. 2,
January 11, 2021 Petition for Hearing (Dkt. No. 21) at 2. At BHN,
Jittaphol completed about one week of detox treatment followed by
about two weeks of short-term inpatient treatment. See Ex. 7,

Chron. Record at 19, 22; see also Ex. 6, Release Status Report at

2.
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On January 4, 2022, Colleen Fenton of BHN reported to
Jittaphol's Probation officer, Maureen Curran, that:

I feel like the only aspect of programming that Aticha did
not comply with was with an aftercare plan. She refused both
long term treatment as well as IOP [Intensive Outpatient
Treatment], despite counseling recommendations as well as the
recommendations of our aftercare counselors.

Ex. 7, Chron. Record at 24.

Similarly, a BHN Discharge Summary dated January 3, 2022,
after noting that Jittaphol had made "great strides” in some
respects, stated that:

Ms. Jittaphol met with aftercare, however, when presented

with options for long-term treatment in a residential

facility or being set up with IOP Ms. Jittaphol was very
closed-minded, and refused both.

Ex. 36, Discharge Summary at 2.4 The Discharge Summary also stated
that:

Ms. Jittaphol met with aftercare staff, however declined
long-term residential treatment and IOP [Intensive Outpatient

4 The Discharge Summary, Exhibit 36, was sent by Probation to the
parties and the court in January 2022. However, it was not
referenced in the hearings on the petitions concerning the alleged
violations until Probation referred to it after the attorneys’
closing arguments on April 8, 2022. The same day, the court ordered
the attorneys to state whether they objected to the Discharge
Summary being made an exhibit in evidence. See Dkt. No. 72. On
April 9, 2022, Jittaphol reported that she did not object, but
raised questions concerning the reliability of the document and
argued the implications of it. See Dkt. No. 73. On April 11, 2022,
the government and Probation agreed that the Discharge Summary
should be admitted as evidence. See Dkt. No. 75. Therefore, the
court has admitted it as Exhibit 36. While relevant, the
information in the Discharge Summary is not material to the court's
decision to revoke Jittaphol's release. If the Discharge Summary
had not been introduced or considered, the court's decision would

have been the same.

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Treatment]. Ms. Jittaphol refused to complete referrals and
stated that she only wanted to return home.

Id. at 3. With regard to "Relapse/Continued Use Potential," the
Discharge Summary stated "High." Id.

After learning that Jittaphol had left BHN on December 27,
2021, as alleged in the January 11, 2022 Petition, Probation
"directed the defendant to reengage in long-term inpatient
treatment services." Ex. 2, January 11, 2021 Petition for Hearing
(Dkt. No. 21) at 2. More specifically on January 7, 2022, Jittaphol
spoke with her Probation officer about long-term treatment. See
Ex. 7, Chron. Record at 25. The Probation officer then "informed
her that if she does not participate in long term care, the Court
will be notified as this is the treatment recommendation that
probation is adhering to. [Jittaphol] reports she understands the
Court will be notified." See id. Nevertheless, Jittaphol refused
to participate in long-term inpatient treatment. See id.; Ex. 2,
January 11, 2021 Petition for Hearing (Dkt. No. 21) at 2; Ex. 6,
Release Status Report at 2.

The court finds by clear and convincing evidence that
Jittaphol's refusal in January 2022 to participate in long-term
inpatient treatment, as directed by Probation, is another
violation of the conditions of her pretrial release.

Jittaphol and her lawyer assert that she did not violate the

conditions of her release because Probation's directive was not

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based on a clinical evaluation or clinical recommendation as stated
in the January 11, 2022 Petition. See Ex. 2, January 11, 2021
Petition for Hearing (Dkt. No. 21) at 2. However, as explained
earlier, on January 4, 2022, a treatment provider from BHN told
Probation that Jittaphol "refused both long term treatment as well
as [intensive outpatient treatment], despite counseling
recommendations as well as the recommendations of our aftercare
counselors." Ex. 7, Chron. Record at 24.5 In addition, as also
explained earlier, this information is consistent with Jittaphol's
Discharge Summary, which states’ that "Jittaphol met with
aftercare, however, when presented with options for long-term
treatment in a residential facility or being set up with [intensive
outpatient treatment] Ms. Jittaphol was very closed-minded, and
refused both." Ex. 36, Discharge Summary at 2.

Jittaphol's counsel ardently argues that it was improper for
Jittaphol to have been directed to participate in inpatient

treatment without a clinical analysis of whether it was required,

5 Jittaphol notes that the Pretrial Services Chronological Record
Report also states that the Probation officer spoke with the
treatment provider on the phone, and the treatment provider stated
that she “believes if [Jittaphol] participates in [intensive
outpatient care] that is sufficient." Id. However, on April 1,
2022, Jittaphol's current Probation officer testified that she
understood this to mean that, "given [Jittaphol] had already
discharged at that point, [the provider] was recommending
intensive outpatient treatment to address her aftercare plan."
Apr. 1, 2022 Tr. at 44:9-11 (emphasis added).

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and that she did not need it. See, e.g., Defendant Motion for Funds
for Addiction Expert concerning Probation Conditions (Dkt. No. 23)
at 2-3; Defendant Opposition to Probation Revocation (Dkt. No. 24)
at 2-5; Defendant Memorandum concerning Probation Petition (Dkt.
No. 48) at 8. He also argues that although he did not file a motion
asking the court to modify Probation's direction,® he did prompt
Probation to file a petition to obtain a decision by the court
concerning whether Jittaphol should have been required to
participate in inpatient treatment. These arguments are relevant
to the weight the court should give to Jittaphol's refusal to
follow Probation's January 2022 direction to participate in
inpatient treatment. They do not, however, alter the fact that the
conditions of Jittaphol's pretrial release require that she
"participate in a program of inpatient or outpatient treatment

substance abuse therapy and counseling if directed by the pretrial

services office or supervising officer." Dkt. No. 12 (emphasis

added). This condition does not require that Probation base its

direction on a clinical evaluation or recommendation.

6 On January 19, 2022, Jittaphol did request modification of a
condition of release restricting her to Massachusetts. She filed
a motion requesting that the court allow her to travel outside of
Massachusetts to play volleyball and work, after Probation told
her that she could not travel to participate in out-of-state
volleyball tournaments. See Dkt. No. 25; see also Ex. 7, Chron.
Record at 25. The court denied this request. See Jan. 20, 2022 Tr.
(Dkt. No. 36) at 45:23-25.

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On January 11, 2022, Probation filed a Petition for Hearing
to address this issue. See Ex. 2, January 11, 2022 Petition for
Hearing (Dkt. No. 21). On January 20, 2022, the court conducted a
hearing to address the two pending petitions alleging violations
of Jittaphol's conditions of pretrial release, as well as her
request to waive indictment and plead guilty. At the hearing, the
court expressed concern about the sufficiency of the parties’
agreed-upon sentence of three years of probation and whether the
binding plea agreement would ultimately be accepted. See Jan. 20,
2022 Tr. (Dkt. No. 36) at 16:11-29:8.

The court continued the hearing and ordered the parties to
file supplemental memoranda addressing why the court should accept
Jittaphol's waiver of indictment and guilty plea and why the
parties' agreed-upon sentence should be found to be sufficient.
See January 21, 2022 Order (Dkt. No. 30).

The court also did not decide whether the alleged violations
of Jittaphol's pretrial release were proven. The court did,
however, order that Probation test Jittaphol for prohibited
substances on a weekly basis and report any failed test, or failure

to be tested, to the court. See id.

On February 7, 2022, Probation filed another Petition for
Summons. See Ex. 3, February 7, 2022 Petition for Summons (Dkt.
No. 39-1). Probation reported that a sweat patch drug test worn by

Jittaphol from January 20, 2022 to January 27, 2022 tested positive

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for methamphetamine. See id. In addition, Probation reported that
"Jittaphol was offered inpatient treatment to address this relapse
and [she] refused to participate in inpatient services." Ex. 6,
Release Status Report at 2.

On March 8, 2022, the court conducted another hearing to
address Jittaphol's waiver and change of plea, as well as the
alleged violations of Jittaphol's pretrial release. At the
hearing, Jittaphol waived indictment and pled guilty to both counts
in the Information. The court accepted Jittaphol's guilty plea and
deferred until her sentencing on June 14, 2022 the decision of
whether to accept the plea agreement or offer Jittaphol the
opportunity to withdraw her guilty plea. See Fed. R. Crim. P.
11(c) (3), (4), (5). The court also continued the hearing to address
the alleged violations in the November 19, 2021, January 11, 2022,
and February 7, 2022 Petitions (Dkt. Nos. 16, 20, 38).

In addition, the court modified Jittaphol's conditions of

release to include the following conditions:

(1) The defendant must fully and properly participate in
outpatient substance abuse treatment with CPC Boston as
directed by the Probation Office.

(2) The defendant must fully and properly participate in
Crystal Meth Anonymous (CMA) as directed by the Probation
Office.

(3) The defendant must fully inform the Probation Office
concerning her current employment so it can decide if that
employment is permissible and appropriate. In addition,
defendant must seek and receive the permission of the

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Probation Office before changing employment or engaging in
additional employment.

(4) The defendant must submit to urine testing for prohibited
substances, observed by a male Probation officer, on a weekly
basis. The defendant must also submit to sweat patch testing
for prohibited substances on a weekly basis.
March 9, 2022 Order (Dkt. No. 55); see also Mar. 8, 2022 Tr. at
29:11-30:6, 34:3-7.

At the March 8, 2022 hearing, the court discussed these
conditions with Jittaphol. The court asked Jittaphol if she was
"prepared to fully participate as directed in the CPC [Counseling
and Psychotherapy Center] program . . . [a]nd also to go to all
the required meetings of Crystal Meth Anonymous?" Mar. 8, 2022 Tr.
at 29:12-16. Jittaphol responded, "[y]les." Id. at 29:11, 14.
Jittaphol's attorney also stated that she was "fully prepared to
comply with the outpatient treatment recommendation." Id. at 27:9-
11. After the hearing, Jittaphol's Probation officer met with her
and "discussed the new conditions that were verbally ordered."
Apr. 4, 2022 Tr. at 68:20-21. The new conditions orally ordered on
March 8, 2022 were memorialized in a March 9, 2022 written Order.
See Dkt. No. 55.

However, two days after the March 8, 2022 hearing, on March
10, 2022, Jittaphol failed to attend her next scheduled treatment
session with CPC Boston. See Ex. 4, March 28, 2022 Petition for

Summons (Dkt. No. 58). Jittaphol testified that she missed this

meeting because she stayed out late the night before after

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attending a Narcotics Anonymous meeting with a friend. See Apr. 4,
2022 Tr. at 101:21-25.

In addition, on March 26, 2022, Jittaphol failed to attend
her scheduled Crystal Meth Anonymous session. See Ex. 4, March 28,
2022 Petition for Summons (Dkt. No. 58). Jittaphol testified that
she missed this session because she stayed out late the night
before at a friend's wedding and overslept. See Apr. 4, 2022 Tr.
at 107:3-6.

As Jittaphol has admitted to failing to attend both sessions
as directed,? there is clear and convincing evidence that she
committed two additional violations of the conditions of her
pretrial release.

In addition, a sweat patch worn by Jittaphol from March 8,
2022 to March 18, 2022 tested positive for methamphetamine. See
id. Urinalysis drug tests from March 1, 2022, March 8, 2022, and
March 24, 2022 tested negative for prohibited substances. See Ex.

6, Release Status Report at 2.

7 The court also notes that Jittaphol's reasons for missing both
sessions -- staying out late the night before each session -- are
not acceptable excuses for failing to comply with the conditions
of her pretrial release. As the court explained to Jittaphol on
March 8, 2022, "[t]Jhat's not the way this works. You can't say, 'I
prefer to do something else.' You have to do what I order you to
do and what Probation tells you to do." Mar. 8, 2022 Tr. at 29:4-
6.

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The court finds that there is probable cause to believe that
Jittaphol possessed and used methamphetamine in January 2022 and
between about March 8 and 18, 2022. The evidence in this case
persuades the court that sweat patches are generally, but not
always, a reliable method of drug testing.® The sweat patch test,
marketed by PharmChem, Inc., is “comprised of an absorbent pad,
covered with a unique polyurethane dressing. . . . Drugs excreted
in sweat are trapped by this polyurethane dressing and retained on

the white absorption pad." Ex. 19, PharmChem, Inc., PharmChek Drugs

of Abuse Sweat Patch Technical Questions and Answers Inc. (May

2017) at 16. The sweat patch is applied to the wearer's skin, worn
for about 7-10 days, then removed and sent to PharmChem for
testing. See id. at 5, 16; Ex. 28, PharmChem, Inc., PharmChek

Analysis Panels at 1, 3.

In 1995, the Food & Drug Administration ("FDA") approved
PharmChem's sweat patch for drug testing, including testing for

amphetamines. See Ex. 18, PharmChem Receives FDA Market Approval

for PharmChek Sweat Patch, Business Wire (July 16, 1995). In order

to do so, the FDA was required to find that the sweat patch testing

8 This conclusion is consistent with the findings of several other
courts. See, e.g., United States v. Meyer, 483 F.3d 865, 868 (8th
Cir. 2007) ("(S]weat patch results area generally reliable method
of determining whether an offender has violated a condition of his
or her probation."); United States v. Gatewood, 370 F.3d 1055,
1060-62 (10th Cir.2004), vacated on other grounds, 543 U.S. 1109
(2005); United States v. Snyder, 187 F. Supp. 2d 52, 60 (N.D.N.Y.
2002).

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device “is as safe and effective as a legally marketed device." 21
U.S.C. §360c(i).

In addition, the Administrative Office of the United States
Courts has found that sweat patch tests are sufficiently reliable
for use by Probation. See Ex. 18, Administrative Office of the
United States Courts, Memorandum to Chief Probation Officers &
Chief Pretrial Services Officers on Testing and Reporting of
Metabolite Levels in Sweat Patches (Jan. 30, 2001) (Dkt. No. 66-
2).9

The proven facts in this case also support the court's
conclusion that there is probable cause to believe that the two
positive sweat patch tests resulted from Jittaphol's possession
and use of methamphetamine. Jittaphol's sweat patches tested
positive for methamphetamine twice. While the court recognizes
that there is a risk that a single positive sweat patch result may
be false, it is less likely that two tests will result in false
positives. In addition, Jittaphol did not test positive for

cocaine, heroin, or any other controlled substance.?° Jittaphol has

9 Other courts have also cited the Administrative Office of the
United States Courts' authorization of the use of sweat patch
testing as indicia of its general reliability. See e.g., Meyer,
483 F.3d at 869 ("Today, the sweat patch is a widely used method
for drug testing that is authorized by the Administrative Office
of the United States Courts."); Alfonso, 284 F. Supp. 2d. at 195-
96 (describing history of sweat patch use by Probation).

10 The court also notes that one of the articles submitted by
Jittaphol, which concerns sweat patch testing for opiate use,

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Case 1:21-cr-10270-MLW Document 79 Filed 04/18/22 Page 20 of 33

admitted to being addicted to methamphetamine and, as previously
explained, has not fully participated in the substance abuse
treatment prescribed by Probation. This makes it more likely that
the positive sweat patch results are reliable.!!

The court also notes that each of the sweat patches that
tested positive were applied to Jittaphol on days that she appeared
in court for hearings concerning alleged violations of her pretrial
release. Jittaphol testified that she has used methamphetamine in
order to relax at particularly stressful times, see Apr. 4, 2022
Tr. at 85:12-87:24, and that this case is stressful for her, see
id. at 105:14-16.

Jittaphol notes her multiple negative urinalysis tests and

argues that the positive sweat patch test results are unreliable.

indicates that false negatives may be more common than false
positive results. See Ex. 29, Huestis et al., Monitoring Opiate
Use in Substance Abuse Treatment Patients with Sweat and Urine
Drug Testing, Journal of Analytical Toxicology 509, 509 (2000)
("There were 13.5% false-negative and 7.9% false-positive sweat
results as compared to urine tests.").

11 Similarly, in United States v. Foley, the court explained that
"the fact that the defendant was a regular cocaine user for eight
months prior to his initial arrest [] lends support to the Court's
finding that the positive results are the result of use rather
than contamination or unknowing exposure to cocaine. Conversely,
the probability would be far less if the person had not used drugs
prior to arrest." Cr. No. 2007-1039-RGS-1, 2008 WL 4787546, at *3
(D. Mass. Oct. 29, 2008).

12 Jittaphol has male genitalia, but identifies as a female.
Probation began testing Jittaphol with sweat patches because
Jittaphol "reported not wanting to be observed by a male officer
- during observed urine collections ... . [Probation] determined

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Case 1:21-cr-10270-MLW Document 79 Filed 04/18/22 Page 21 of 33

However, the urinalysis tests may have been negative because
Jittaphol used methamphetamine sporadically or in small doses. One
study, submitted by Jittaphol, explains that:

[S]weat testing for drugs of abuse is increasing, especially
in criminal justice programs. One reason for this increase is
sweat testing may widen the detection window compared to urine
testing. Drug metabolites are rapidly excreted in urine
limiting the window of detection of a single use to a few
days.

Ex. 29, Huestis et al., Monitoring Opiate Use in Substance Abuse

Treatment Patients with Sweat and Urine Drug Testing, 24 Journal

of Analytical Toxicology 509, 509 (2000) .}3

Jittaphol admitted that she used methamphetamine sporadically
in the past. More specifically, she testified that, after she first
used methamphetamine about eight years ago, she used it “once in
a while" and "not really often." Apr. 4, 2022 Tr. at 116:4-5, 17-
18. She also stated that she could "choose that [she] wante[d] to
use like [at] some parties and fun with friends." Id. at 116:22-

23.

that that would be an appropriate way to test her given some kind
of sensitive issues that she had reported early on" concerning her
gender identity. Apr. 4, 2022 Tr. at 35:1-2, 8-10.

13 In Alfonso, the court made a similar finding that "the sweat
patch has the potential to provide a more accurate picture of an
offender's drug use. Whereas a urinalysis is essentially a snapshot
that provides a picture of drug use over a 72-hour period, the
sweat patch is worn continuously." 284 F. Supp. 2d at 196.

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Case 1:21-cr-10270-MLW Document 79 Filed 04/18/22 Page 22 of 33

Methamphetamine can typically be detected in urine tests for
three to seven days after the last dose, depending on the amount
used and, therefore, its use may not be captured by a urine test.

See Ex. 14, American Addiction Center, How Long Does Meth Stay in

Your System? (Jan. 31, 2022). It is also possible that Jittaphol

used a low dosage of methamphetamine, which made it undetectable
in her urine tests.14

Therefore, the court finds that probable cause exists to
believe that Jittaphol violated state and federal law by possessing
and using methamphetamine in January 2022 and in about March 8 to
18, 2022. See 21 U.S.C. §844; M.G.L. ch. 94C, §34. However, in
view of the inconsistency between Jittaphol's negative urinalysis
results and the positive sweat patch results, as well as her
subsequent negative sweat patch results, the court does not find
that there is clear and convincing evidence that Jittaphol used
methamphetamine in January and March 2022.

Jittaphol's license to give massages expired in January 2021.
See Apr. 8, 2022 Tr. at 12:24-13:11. She testified that after being
arraigned in this case, she gave massages in homes without being

licensed. See Ex. 6, Release Status Report at 2; Apr. 4, 2022 Tr.

14 In Meyer, the court also noted that "the negative urine samples
could have occurred because the amount of cocaine that [the
defendant] consumed was simply too small to register a positive
result through urinalysis." 483 F.3d at 870; see also Alfonso, 284

F. Supp. 2d at 196.

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Case 1:21-cr-10270-MLW Document 79 Filed 04/18/22 Page 23 of 33

at 119:3-10. It is not proven that she did so after March 8, 2022,
when her conditions were modified.

However, after March 8, 2022, Jittaphol changed employment,
and began employment in addition to working in a restaurant,
without informing Probation and seeking its permission as ordered.
On March 23, 2022, Probation met with Jittaphol at Emerald Massage,
where she was working as a massage therapist. See Ex. 4, March 28,
2022 Petition for Summons (Dkt. No. 58) at 2. Jittaphol had not
previously reported this proposed employment to Probation. See
id.3

If the court had been informed in advance of this proposed
employment, it would not have authorized it. Emerald Massage is
located at the former address of Mantra Dhevi Spa, the massage
parlor that was owned by Jittaphol and is at the heart of this
case because unlawful sexual activity occurred there. See Ex. 6,
Release Status Report at 3. Jittaphol testified that, in September

2021, she sold her massage business and transferred ownership to

18 Jittaphol was also required to "fully inform the Probation Office
concerning her current employment so it can decide if that
employment is permissible and appropriate." March 9, 2022 Order
(Dkt. No. 55). Probation reports that, on March 8, 2022, Jittaphol
"clarified that she was only working at the restaurant." Apr. 4,
2022 Tr. at 69:1-2. Therefore, if Jittaphol had commenced
employment at Emerald Massage before her conditions were modified,
her failure to report that employment on March 8, 2022 constitutes
a violation of the conditions of her release.

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Case 1:21-cr-10270-MLW Document 79 Filed 04/18/22 Page 24 of 33

the owner of the restaurant where she also currently works. See
Apr. 4, 2022 Tr. at 125:21-126:7.

Jittaphol was giving a male customer a massage when her
Probation officer arrived. See id. at 80:17-20, 112:17-113:8; Ex.
6, Release Status Report at 3. Jittaphol testified that the man
had been a customer of Mantra Dhevi Spa. See Apr. 8, 2022 Tr. at
45:7-24. When the customer arrived, he told Jittaphol that he was
"glad this place was open again." Id. at 46:13-14. On March 23,
2022, the customer paid Jittaphol, in cash, $80 for the massage
and gave her a $20 tip. See id. at 47:10-48:1. Jittaphol kept the
full $100, claiming unpersuasively that the new owner said she
could. See id.

As indicated earlier, Jittaphol's massage therapy license
expired in January 2021, and has not been renewed. See Apr. 8,
2022 Tr. at 12:24-13:11. However, according to her testimony,
Jittaphol worked as an unlicensed massage therapist when she was
"self-employed by providing massages for income" following her
arraignment in October 2021, and at Emerald Massage on March 23,
2022. Ex. 6, Release Status Report at 2; see also Apr. 4, 2022 Tr.
at 119:3-10; Apr. 8, 2022 Tr. at 13:12-14. Jittaphol's work as a
massage therapist without a license was a violation of state law.
See M.G.L. c. 112 §228(a) ("No person shall hold himself out to
others as a massage therapist or practice massage or massage

therapy unless he holds a valid license issued in accordance with

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Case 1:21-cr-10270-MLW Document 79 Filed 04/18/22 Page 25 of 33

this chapter."). Although not a crime, and not an alleged violation
of Jittaphol's conditions of pretrial release, the fact that she
worked illegally as a massage therapist after being charged in
this case is additional evidence of Jittaphol's unwillingness to
comply with her legal obligations.

On March 28, 2022, Probation filed a Petition for Summons,
advising the court that the sweat patches worn by Jittaphol between
March 8, 2022 and March 18, 2022 returned positive for the presence
of methamphetamine, that Jittaphol began working as a massage
therapist at Emerald Massage without reporting this change in
employment to Probation, and that she failed to attend treatment
with CMA on March 26, 2022, and treatment with CPC on March 10,
2022. See Ex. 4, March 28, 2022 Petition for Summons (Dkt. No.
58).

On April 14, 2022, after the court had decided to revoke
Jittaphol's release and was drafting this Memorandum to inform the
parties of its decision, Probation filed another Petition for
Summons (Dkt. No. 76, ex parte and under seal), reporting that the
sweat patch worn by Jittaphol between March 24, 2022 and April 1,
2022 returned positive for the presence of methamphetamine. Again,
this period includes a scheduled hearing in this case. However, as
the petition was filed after the court had decided to revoke
Jittaphol's release and is not material to that decision, the court

will not conduct a hearing on the latest alleged violation and has

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Case 1:21-cr-10270-MLW Document 79 Filed 04/18/22 Page 26 of 33

not considered it in deciding whether to revoke Jittaphol's
release, 1é

IV. DISCUSSION

In view of the foregoing facts, the court finds that there is
probable cause to believe that Jittaphol used and, therefore,
possessed methamphetamine in October 2021. Probable cause also
exists to believe that Jittaphol used and possessed
methamphetamine in January 2022 and between March 8 and 24, 2022.
As indicated earlier, the possession of methamphetamine is both a
state and federal crime. See 21 U.S.C. §844; M.G.L. ch. 94C, $34.

In addition, there is clear and convincing evidence that
Jittaphol committed six other violations of the conditions of her
pretrial release by: (1) failing to report as directed by Probation
for substance abuse treatment at SSTAR on November 22, 2021; (2)
failing to report as directed for substance abuse treatment at
SSTAR on November 30, 2021; (3) failing to participate as directed
in long-term inpatient treatment after she left the BHN treatment
program in December 2021; (4) failing to fully participate in CPC
treatment by missing her first scheduled appointment two days after
the March 8, 2022 hearing; (5) failing to fully participate in CMA

treatment by missing a session on March 26, 2022; and (6) failing

16 The court is ordering that the April 14, 2022 petition be unsealed
and served on the parties.

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Case 1:21-cr-10270-MLW Document 79 Filed 04/18/22 Page 27 of 33

to inform Probation and seek its permission before she began new
or additional employment at Emerald Massage.

The findings of probable cause to believe that Jittaphol
committed crimes while released pending resolution of her case and
of clear and convincing evidence that she repeatedly violated other
conditions of her release require that the court decide whether it
is proven by a preponderance of the evidence that Jittaphol is
unlikely to abide by any condition or combination of conditions of
release. See 18 U.S.C. §3148(b) (1) (A) & (B) and (b) (2) (B); Gotti,
794 F.2d at 777; Aron, 904 F.2d at 227. The court finds that this
standard has been met. Therefore, the express terms of the statute,
§3148(b), which states that in these circumstances the court "shall

enter an order of revocation and detention," require that Jittaphol

now be detained. See, e.g., United States v. Quirion, 808 F. Supp.

2d 343, 348 (D. Me. 2011) ("The Court concludes that these findings
mandate the revocation of Mr. Quirion's presentencing release

order and his detention pending the sentencing hearing."); United

‘States v. Rivera, 104 F. Supp. 2d 159, 160 (D. Mass. 2000)
(concluding that "revocation of release and detention are
required" when both prongs for "mandatory revocation of release
under 18 U.S.C. §3148(b)" are satisfied). However, if the court
has the discretion to continue Jittaphol's release on the existing

or modified conditions, it is exercising it to revoke her release.

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Case 1:21-cr-10270-MLW Document 79 Filed 04/18/22 Page 28 of 33

More specifically, Jittaphol's repeated violations since
being released on conditions on October 26, 2021 persuade the court
that she is either unwilling or unable to conform her conduct to
the requirements of the court orders that those conditions
constitute. Her first violation occurred three days after her
release when she tested positive for methamphetamine. No action
was taken on that violation because Probation granted Jittaphol's
request for drug treatment. Yet Jittaphol promptly twice failed to
report as directed by Probation to begin that treatment with SSTAR.
Nevertheless, Probation arranged for Jittaphol to enter treatment
with BHN. Although Jittaphol successfully completed the first two
phases of that treatment, she refused to engage in further
inpatient treatment as recommended by BHN and directed by
Probation.

The court could, and perhaps should, have decided whether to
revoke Jittaphol's release at the January 20, 2022 hearing.
Instead, it continued the hearing on the pending petitions to
provide Jittaphol another opportunity to demonstrate that she
would obey the conditions of her release. However, Jittaphol
subsequently twice tested positive for methamphetamine on sweat
patch tests, providing probable cause to believe that she continued
to use methamphetamine occasionally, as she had at times in the
past. On March 8, 2022 the court explained to Jittaphol that it

was essential that she fully comply with all of the conditions of

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Case 1:21-cr-10270-MLW Document 79 Filed 04/18/22 Page 29 of 33

her release, including by fully participating in outpatient
treatment with CPC. She promised to do so. Nevertheless, Jittaphol
skipped her next scheduled session on March 10, 2022. She also
skipped the March 26, 2022 CMA meeting she was directed to attend.

In addition, during the full period of her release, Jittaphol
worked as an unlicensed massage therapist. She testified that she
started working at Emerald Massage on March 23, 2022, the day her
Probation officer came to see her. She admits that she did not, as
ordered on March 8, 2022, inform her Probation officer of this
proposed employment so Probation and the court could decide whether
to authorize it. This is not a minor infraction. Emerald Massage
is essentially Jittaphol's former business, Mantra Dhevi Spa,
under new ownership at the same location. In pleading guilty,
Jittaphol admitted that illegal sexual services were provided at
the massage parlor when she owned it. She was providing services
to one of her former male customers when her Probation officer
arrived on March 23, 2022. He paid her $100 in cash. She kept all
of it. If informed in advance that Jittaphol hoped to work at
Emerald Massage, the court would not have authorized it because of
the unacceptable risk that Jittaphol would again be engaged ina
business providing unlawful services, now as an individual not
licensed to give even an otherwise lawful massage.

In contrast to 18 U.S.C. §3148(a) (2) (A), §3148(a) (2) (B) does

not, by its terms, require that the court consider the factors set

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Case 1:21-cr-10270-MLW Document 79 Filed 04/18/22 Page 30 of 33

forth in §3142(g) in deciding whether to revoke release and detain
a defendant because she is unlikely to obey any combination of
conditions of release. Nevertheless, the court has considered the
relevant §3142(g) criteria. Jittaphol has pled guilty so there is,
therefore, no risk that an innocent person will spend time in
custody if Jittaphol is detained until her sentencing on June 14,
2022. Jittaphol has a history of drug abuse and of not fully
participating in treatment for it. Her two positive drug tests
provide probable cause to believe that she has continued to commit
crimes while released.

At the April 8, 2022 hearing, the Assistant United States
Attorneys, but not Probation, suggested that detaining Jittaphol
for a week might be an appropriate response to the many violations
of the conditions of her release. The court has also considered
whether revoking Jittaphol and placing her in home confinement
would be appropriate. The court is persuaded, however, that a short
term of detention would not be sufficient to persuade Jittaphol to
obey the conditions of her release in the future. If placed in
home confinement, Jittaphol could obtain methamphetamine and use
it at home, which she testified was her prior practice.

In view of the foregoing, the court is revoking Jittaphol's
‘release and ordering that she report on April 21, 2022 to the
United States Marshal. The Marshal has been informed that Jittaphol

has male genitalia, but identifies and presents as a female. The

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Case 1:21-cr-10270-MLW Document 79 Filed 04/18/22 Page 31 of 33

Marshal has assured the court that the facility at which Jittaphol
will be detained has experience with housing such individuals
safely and securely, and will do so with regard to Jittaphol.

V. THE BINDING PLEA AGREEMENT

As explained earlier, the parties entered into a Rule
11(c)(1)(C) binding plea agreement that, if accepted, would
require the court to impose a sentence of three years probation
rather than any time in custody. At the January 20, 2022 hearing,
the court declined to accept Jittaphol's guilty plea and deferred
until sentencing deciding whether to accept the plea agreement in
part because of concern it expressed that a sentence of probation
would not, among other things, "afford adequate deterrence to
criminal conduct," by Jittaphol and others as required by 18 U.S.C.
§3553(a) (2) (B). The parties' subsequent submissions persuaded the
court to accept Jittaphol's guilty plea on March 8, 2022, and defer
until the June 14, 2022 sentencing the decision whether to accept
the binding plea agreement or give Jittaphol the opportunity to
withdraw her guilty plea. See Mar. 8, 2022 Tr. at 4:16-19, 20:10-
14.

It remains uncertain whether the court would have accepted
the binding plea agreement if Jittaphol had not continued to
violate the conditions of her pretrial release after March 8, 2022.
It is now, as a practical matter, not possible for the court to

accept it and sentence Jittaphol solely to probation because she

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Case 1:21-cr-10270-MLW Document 79 Filed 04/18/22 Page 32 of 33

is being detained and that period of detention before sentencing
will be credited to any time in custody to which Jittaphol is
sentenced. See 18 U.S.C. §3585(b). While she may at sentencing
advocate a sentence of time-served, she cannot receive a sentence
of probation with no time in custody.

Accordingly, the court is, pursuant to Rule 11(c) (5) (A),
rejecting the plea agreement and, pursuant to Rule 11(c) (5) (B) and
(C), giving Jittaphol until May 2, 2022, to inform the court
whether she wishes to withdraw her guilty plea and, if she does
not withdraw it, state that she understands that she will receive
a sentence less favorable than probation.?’

VI. ORDER

In view of the foregoing, it is hereby ORDERED that:

1. Jittaphol's release is REVOKED. She shall report, by 12:00
noon on April 21, 2022, to the United States Marshal at the Moakley
Federal Courthouse, to be DETAINED at least until sentenced.

2. Jittaphol:

(a) Is committed to the custody of the Attorney General
for confinement in a corrections facility separate, to the extent
practicable, from persons awaiting or serving sentences or being

‘held in custody pending appeal;

17 Upon request the court will have Jittaphol transported from the
facility at which she is detained to provide her this information
again in open court. See Fed. R. Crim. P. 11(c) (5).

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Case 1:21-cr-10270-MLW Document 79 Filed 04/18/22 Page 33 of 33

(b) Shall be afforded reasonable opportunity for private

consultation with counsel; and

{c) On order of a court of the United States or on
request by an attorney for the government, shall be delivered to
- an authorized Deputy United States Marshal for the purpose of any
appearance in connection with a court proceeding by the person in
charge of the corrections facility in which Jittaphol is confined.

3. Jittaphol's Rule 11(c) (1) (C) binding plea agreement (Dkt.
No. 7) is REJECTED. She shall, by May 2, 2022, report whether she
wishes to withdraw her guilty plea and go to trial or maintain her
guilty plea with the understanding that her sentence will be less

favorable than probation.

4. The April 14, 2022 Petition for Action on Conditions of
Pretrial Release (Dkt. No. 76, ex parte and under seal) is UNSEALED

and shall be served on the parties.

NITEDNSTATES DISTRICT JUDGE

33

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